The Jadhav case

This article has been written as a riposte to the inaccurate and misleading commentary on the case of Indian spy Kulbhushan Jadhav presently before the International Court of Justice (ICJ). As can be seen by an objective review of the televised proceedings, as well as the written and oral submissions rendered by the learned Queens Counsel representing Pakistan, the ICJ made a provisional measures order solely to preserve the status quo pending a hearing on jurisdiction and merits. Indeed, the president of the ICJ expressly reaffirmed this point on June 8^th 2017 whilst setting the shortest timetable possible for India to plead the merits of its case.

Going forwards, it is imperative that commentators and media act responsibly and fact-check. What appear to be unfair and malicious onslaughts on Pakistan’s Lead Counsel (for allegedly conceding jurisdiction, failing to make full arguments — all wrong) are tristful, untenable and unacceptable.

It is not far from truth that on May 18^th 2017, in the case of Jadhav titled ‘India vs Pakistan’, the ICJ, whilst mindful of its function “to resolve international legal disputes between States, inter alia when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal,” rendered its indication of provisional measures to the effect that the government of Pakistan “shall take all measures at its disposal” to ensure that Jadhav, of Indian nationality, “is not executed pending the final decision.” In equal temper, the ICJ also indicated that Pakistan “… shall inform the Court of all measures taken in implementation of the … Order.”

The ICJ also affirmed that until its final decision, “it shall remain seized of the matters which form the subject-matter” of the Order. It is extremely unfortunate how this indication of provisional measures, or Order of the ICJ — preliminary in nature — has been completely ignored or deliberately misconstrued by various factions, actors and commentators alike, including Pakistan’s media, to shed negative light, or cast blight, on the credibility and competence of Pakistan’s ability to effectively represent or defend itself before the ICJ.

Except the initial uproar at first blush, it is somewhat interesting to note that not much has been enunciated or averred since the Order was rendered by the ICJ, which reflects and even confirms the proclivity on the part of all to treat the issue — still live — as a lost and bygone subject, or cause. The initial reaction and verbal wordplay was resolutely doused at the outcome of the Order, as if it was a final decision or judgment in favour of India. This is wrong.

The semblance, which was briefly popular, was that we had lost. It appears that almost everyone lost sight of the legal position that the Order does not (as even the final decision to be rendered by the ICJ, cannot) ‘conclusively’ determine the innocence or guilt of Jadhav; as the ICJ has expressly stated again and again, that it does not act as a court of criminal appeal. This point, amongst many others, was flagged up by the Lead Counsel at the provisional measures hearing — but will only be argued and determined by the ICJ when it deals with jurisdiction and merits — perhaps sometime next year.

The Jadhav case, as agitated by India, essentially revolves around or hinges upon the question whether, in the wake of international law and obligations, he was granted or denied consular access in terms of the Vienna Convention on Consular Relations, 1963, to which both Pakistan and India are a party. The case does not directly dwell into the fate of his innocence or guilt.

It is hardly surprising that the Indian government, and their media houses, were at pains not only to misrepresent the facts surrounding the case, but that they also sought to unjustifiably besmirch the Lead Counsel representing Pakistan, who has acted for or against more than 60 states, and is the only English QC to have ever acted for India, Pakistan and in cases between both states.

However, what is more worrisome is when various factions, actors and commentators, including certain media houses in Pakistan, in a perfunctory sense, followed suit, and whether maliciously, ignorantly or irrationally, employed and disseminated both demeaning and defamatory content in a campaign of vilification against those defending our national interests, without even as much as a cursory fact-finding.

Having said that, an ephemeral resumption of facts seems rather imperative. Jadhav was arrested in Balochistan, and was thereafter tried and sentenced to death by military courts of Pakistan on 10 April, 2017, for being involved in, and guilty of, espionage and terrorism. However, as a political ploy, instead of readily cooperating with Pakistan over the issue in order to de-escalate the rampant regional chasm, India eventually sought to invoke the jurisdiction of, and take refuge in, the ICJ.

On the request for the indication of provisional measures, India accentuated and placed reliance on three erstwhile cases or precedents of the ICJ: the La Grand case (Germany vs the US) of 1999; Paraguay vs the US of 1998; and Mexico vs the US of 2003. It is a matter of record that in all the three cases of precedential significance, the ICJ was pleased to indicate or grant provisional measures against the US to prevent the imminent execution of nationals respectively involved and sentenced therein, on the premise of a purported violation of Article 36 of the Vienna Convention on Consular Relations, 1963.

However, despite the best efforts made to rightly distinguish the underlying facts of the case from those of the precedent set, it would perhaps be rather imprudent or naïve to legitimately expect that any court of law, or the ICJ in the present case, would readily disregard, or gambol away from, its own decisions — binding — of the past.

From a simple legal perspective, the ICJ indicated or granted provisional measures of protection, which essentially, and for all intents and purposes, do tantamount to a status quo till such time as the final decision on the fundamental issue of consular access, or its alleged denial, is arrived at. This should be no surprise, and should neither be portrayed as one.

An empirical analysis of the practice and jurisprudence of courts of law the world over will reflect and confirm, as a common thread, that causes or issues pertaining to person, limb and (even) property are provisionally protected till the final outcome or decision, on merits, is arrived at; for otherwise, the potential remedy would merely be illusory or desultory, and the issue would simply be rendered ‘infructuous’.

Interestingly, and without prejudice to the above, it is also a matter of record that notwithstanding, the indication of provisional measures in the cases against the US still went ahead and afforded preference to its own domestic findings over those of the ICJ. For Pakistan, however, it may, subject to all just and legal exceptions, be a counsel of prudence not to follow suit and to abide by international norms and legal obligations. This is without prejudice to the immutable fact that Pakistan, at all material times, enjoys the inalienable right, as a sovereign state, to try and sentence those involved in espionage and terrorism.

Published in The Express Tribune, December 22^nd, 2017.

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